Along the steep Pali Puka trail last spring, the verdant beauty of Oahu spilled out to the Pacific Ocean from the scenic path where Gerhardt and Arielle Konig stood. On that high ridge, they fought for their lives – emotionally, then physically – each later would testify. A trip intended to celebrate Arielle’s birthday – and maybe salvage their troubled marriage – ended with the couple, who share two young children, on the ground attacking each other. He bashed her in the face with a rock. She bit him and squeezed his testicles. Who started the melee became the question at the heart of an attempted second-degree murder charge filed against Gerhardt Konig. Prosecutors said the defendant wanted to kill his spouse and tried to push her off the cliff. But after an emotional, 10-day trial a year later that saw husband, wife and one of Gerhardt Konig’s children from a prior marriage on the stand, the jury found him guilty of the lesser charge of attempted manslaughter. At Konig’s request, a judge on Friday heard arguments on whether a new jury should hear the case because of what two jurors in news interviews revealed soon after issuing the verdict that could send Konig to prison for up to 20 years, along with concern one juror may have communicated about the case outside the jury room during deliberations. “Jury irregularities call into serious question the integrity of this verdict,” defence attorney Thomas Otake wrote in an appeal filed in May. At Friday’s hearing, Judge Paul Wong said the court would question jurors about any outside communications during deliberations before deciding whether to grant a new trial. The court will revisit the matter on Sept. 11. “The court must ascertain the extent of the influence,” Wong said. Whether defendant intended to kill is at issue Finding insufficient evidence to convict Konig of attempted murder, the jury found him guilty of attempted manslaughter, with his actions – even if extremely dangerous – motivated by “extreme mental or emotional disturbance.” Ruling out an attempted murder charge was a relief to Konig’s legal team and left open the possibility Konig could be sentenced to probation, with no jail time at all. “We are thankful that they did not convict him of attempted murder, which would have been life in prison,” Otake told reporters shortly after the verdict was announced. Still, the defence attorney immediately promised an appeal based on unspecified concerns about the judge’s rulings during the trial. When his motion dropped a month later, however, it wasn’t the judge Otake took issue with: The request for a new trial was based on what jurors said after the verdict. “Somebody was definitely hurt; it was a bodily injury to the head that could result in serious bodily injury,” foreperson Makalapua Atkins told CNN affiliate East Idaho News about jurors’ state of mind in deliberations. “The intent to kill is improbable to us based on the evidence presented,” Atkins said in an interview after the verdict with True Crime AZ, adding, “The only people who know what happened on that cliff are the two that were involved.” But under Hawaii law, Konig’s defence team has argued, even a conviction for attempted manslaughter would require the jury to find the defendant was trying to kill the victim – and the foreperson said they didn’t. “The jury did not unanimously believe that Dr. Konig had an intent to kill his wife,” Atkins confirmed in a sworn statement to the defence attorney accompanying his appeal. Prosecutors also asked Atkins to sit down with them for an interview, but she declined, their response to the request for appeal states. CNN could not reach Atkins for comment. Another juror, identified publicly only as Juror #3, also said he had not been convinced Gerhardt Konig intended to take Arielle’s life that day. “I don’t know if he was trying to kill his wife, personally,” he told Honolulu TV station KHON in an on-camera interview. “I do know that it was the capacity to kill his wife, personally. That how I felt about it.” If jurors didn’t understand what was required for conviction, Konig’s attorneys argued, it opens the door to a new trial. “Conduct that could result in death or has the capacity to kill may be reckless, but it is not necessarily intentional, and Hawaiʻi does not recognize attempted reckless manslaughter,” Konig’s defence attorneys said, with the emphasis, in a court filing. Did the jury understand the law? “The jurors’ public remarks raise a serious concern that the verdict may rest upon findings inconsistent with the convicted offence,” Konig’s defence attorneys said in a motion for a new trial. The judge’s instructions – 33 in all – were a lot to digest. They laid out a menu of five possible charges – from second-degree attempted murder to third-degree assault – explaining the order in which they had to be considered and steps to evaluating each. “If and only if you unanimously find that all the elements of Attempted Murder in the Second Degree have been proven by the prosecution beyond a reasonable doubt, and you unanimously find that the defendant was not acting in Self-defence, then you must consider the affirmative defence of Extreme Mental or Emotional Disturbance,” one instruction states. In their response to Konig’s request for a new trial, prosecutors did not try to rebut the claim jurors were confused, instead saying it doesn’t matter. The “internal thought process” of the jury, even when revealed voluntarily by jurors, should not be reconsidered by the court after a verdict, prosecutor Joel Garner stated. “Jurors can change their mind, but what matters is whether the verdict was unanimous at the time it was rendered,” the prosecution wrote. “In this case it was, even according to the on-the-record statements of the foreperson – and therefore a later declaration disagreeing with the verdicts is not a sufficient basis to grant a motion for a new trial.” Juror may have revealed their discussions during deliberation Konig’s defence also raises another concern about the jury: that one member may have been communicating about the case to an outsider while deliberations were still underway. “I’ve been texting with one of the juror’s (sic) and they’re going for count 3 attempted manslaughter,” says a message posted to the live chat of trial coverage by the Law&Crime Network. The comment was first spotted by someone – whose name is redacted in the court filing – and emailed to prosecutors, who alerted the judge. “What caught my attention is that this commenter specifically predicted the verdict – that Konig would be convicted of attempted manslaughter – before it was announced,” the person wrote in the email. Whether it was legitimate or a hoax has not been proven, but Konig’s defence attorneys say the fact that it correctly foreshadowed the verdict should give it credibility. “Although the full scope of any such communication remains unknown, these circumstances raise substantial concerns regarding the jury’s exposure to outside influence or extraneous information during deliberations,” the defence team wrote. Prosecutors say even if the comment was authentic, it doesn’t require a new trial unless there is proof that “external influence” swayed the decision of the juror. “A juror disclosing where the jury stands is certainly problematic, but on its own it does not indicate that the other party influenced that juror in any way,” Garner said in their court filing. Could a new trial backfire? If Konig, who is in jail pending his sentencing, is granted a new trial, it could come with a big risk: He could face the attempted murder charge again after beating it in his first trial. Otake is trying to make sure that doesn’t happen. “The jury did not convict Dr. Konig of attempted murder in the second degree,” the defence lawyer wrote, arguing the conviction on the lesser charge amounts to an attempted murder acquittal since the jury could not convict Konig of both. “Any retrial must therefore be limited to offences consistent with the jury’s verdict and the constitutional protections against double jeopardy,” Otake added. The Department of the Prosecuting Attorney in Honolulu has not said whether it would try to pursue an attempted murder conviction again if a retrial is ordered. Either way, the legal fight between Gerhardt and Arielle Konig will continue, as their divorce is still pending. “The marriage,” Arielle Konig wrote in her divorce petition, “is irretrievably broken.” By Andy Rose, CNN
